Baron Bernstein of Leigh v Skyviews & General Ltd - Viewing document - ICLR PDF

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7/28/2021

Baron Bernstein of Leigh v Skyviews & General Ltd - Viewing document - ICLR

[QUEEN'S BENCH DIVISION]

BERNSTEIN OF LEIGH (BARON) v. SKYVIEWS & GENERAL LTD. [1975 B. No. 6333]

1977 Feb. 2, 3, 4; 10 Griffiths J.

Trespass — Air space — Aerial photography — Landowner's rights in airspace above property — Whether flight over property for purpose of photography trespass and/or invasion of privacy — Application of statutory protection — Civil Aviation Act 1949 (12 & 13 Geo. 6, c. 67), s. 40 (1) [1]

The defendants flew over the plaintiff's land for the purpose of taking an aerial photograph of the plaintiff's country house which they then offered to sell to him. The plaintiff claimed damages, alleging that by entering the airspace above his property in order to take aerial photographs the defendants were guilty of trespass, and/or were guilty of an actionable invasion of the plaintiff's right to privacy by taking the photograph without his consent or authorisation:— Held, giving judgment for the defendants, that an owner's rights in the airspace above his land were restricted to such height as was necessary for the ordinary use and enjoyment of the land and structures upon it, and above that height he had no greater rights than any other member of the public; that, accordingly, the defendants' aircraft did not infringe any rights in the plaintiff's airspace and thus did not commit any trespass by flying over land for the purpose of taking a photograph (post, p. 488A–C). https://www.iclr.co.uk/document/1971000333/casereport 39561/html

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Per curiam. The protection given by section 40 (1) of the Civil Aviation Act 1949 extends to all flights which are at a reasonable height and comply with the statutory requirements (post, p. 489D).

The following cases are referred to in the judgment: Commissioner for Railways v. Valuer-General [1974] A.C. 328; [1973] 2 W.L.R. 1021;

[1973] 3 All E.R. 268, P.C. Ellis v. Loftus Iron Co. (1874) L.R. 10 C.P. 10. Gifford v. Dent [1926] W.N. 336; 71 S.J. 83 . Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. [1957] 2 Q.B. 334;

[1957] 2 W.L.R. 1007; [1957] 2 All E.R. 343. Lemmon v. Webb [1894] 3 Ch. 1, C.A. Pickering v. Rudd (1815) 4 Camp. 219. Saunders v. Smith (1838) 2 Jur. 491. Sovmots Investments Ltd. v. Secretary of State for the Environment [1977] Q.B. 411;

[1976] 3 W.L.R. 597; [1976] 3 All E.R. 720, C.A. Wandsworth Board of Works v. United Telephone Co. Ltd. (1884) 13 Q.B.D. 904, C.A. 480

The following additional cases were cited in argument: Hickman v. Maisey [1900] 1 Q.B. 752, C.A. Kenyon v. Hart (1865) 6 B. & S. 249. Woollerton and Wilson Ltd. v. Richard Costain Ltd. [1970] 1 W.L.R. 411; [1970] 1 All E.R. 483.

ACTION By a writ dated June 26, 1975, the plaintiff, Sidney Lewis, Baron Bernstein of Leigh, alleged that the defendants, Skyviews & General Ltd., aerial photographers, were guilty of trespass in that on a date late in 1974 they, their servants or agents, wrongfully entered the airspace above the plaintiff's premises, Coppings Farm, Leigh, Kent, in order to take aerial photographs of the plaintiff's https://www.iclr.co.uk/document/1971000333/casereport 39561/html

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residence; further or alternatively the plaintiff alleged that the taking of the aerial photographs of the plaintiff's home without his consent or authorisation constituted an actionable invasion of the plaintiff's right to privacy. The plaintiff claimed damages for trespass and/or invasion of the plaintiff's right to privacy; an injunction to restrain the defendants from entering the plaintiff's premises or the airspace above them; an injunction to restrain the defendants from invading the plaintiff's right to privacy by taking unauthorised aerial photographs of his home or otherwise; an order for the immediate delivery up, alternatively the destruction, of all negatives and prints of the photographs. By their defence the defendants admitted that they took aerial photographs of the plaintiff's premises but denied entering the airspace above the premises to do so; alternatively. they claimed that if they did enter the airspace above the plaintiff's premises such entry was by the leave of the plaintiff; further and in the alternative, they claimed the protection of section 40 (1) of the Civil Aviation Act 1949. The facts are stated in the judgment.

Charles Gray for the plaintiff. In order to take the photograph the defendants' agent must have flown over the plaintiff's property, and if he did so that is an actionable trespass: see Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. [1957] 2 Q.B. 334. The only protection given by section 40 of the Civil Aviation Act 1949 is to a civil aircraft which is exercising its ordinary right of passage across the sky. The section does not protect an aircraft which is flying purely in order to take photographs of private property. The law relating to passage of aircraft is analogous to the law relating to highways where a member of the public has a right to pass and repass, but not to use the highway for some other purpose. L. D. Lawton Q.C. and Gerald Lumley for the defendants. It is for the plaintiff to prove whether or not the defendants' agent entered the airspace above the plaintiff's property, and even if he did so. then that entry was not capable of constituting an actionable tort of trespass: see Pickering v. Rudd (1815) 4 Camp. 219. The maxim cujus est solum ejus est usque ad coelum et ad inferos is not apt to deal with present day conditions, in which aircraft are constantly flying over private property. It is 481

common sense to take the view that a landowner's property in airspace only extends up to a height which is necessary for the full enjoyment of the land and of any erections on the land, and beyond that point an occupier may only sue in nuisance: see Shawcross & Beaumont on Air Law, 3rd ed. (1966), p. 532. A mere entry into airspace above private land is not actionable unless it causes

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harm, danger or inconvenience to the occupier, in which case there is a cause of action in nuisance: see Salmond on Torts, 16th ed. (1973), pp. 43, 45. If one accepts the view taken by Shawcross & Beaumont the result is reasonable in that if an occupier does something which affects his neighbour's property, for example, by putting a projecting sign over it, or stretching a wire across it which physically affects it, then that is an actionable trespass. English law does not recognise a right of privacy: see Appendix 1 to the Younger Report on Privacy (1972) (Cmnd. 5012). It would be a dangerous extension of the law relating to trespass to say that a tort which historically was regarded as sufficiently grave in itself to require no proof of special damage, should now be enlarged in order to embrace the passage of aircraft taking aerial photographs. If one wanted to make a film of a city it would be impossible to obtain every occupier's permission. An action in nuisance might be appropriate where damage is inflicted by misbehaviour or buzzing of aircraft, but not where there is merely the passage of aircraft at a considerable height doing no harm to anybody and in the course of which an act of photography is taking place. If the assumed entry did not and was not capable of constituting a trespass, the fact that a photograph was taken cannot turn it into a trespass. If the assumed entry was capable of constituting a trespass, the defendants were not trespassers, but were implied licensees in that the plaintiff, when he first knew about the photographs, did not forbid the defendants to allow their agent to fly over his land again. If the aircraft did enter the airspace, and the entry was prima facie a trespass, the defendants are entitled to the protection of section 40 of the Act. A proper reading of the Act does not justify any inference being drawn that, but for the provisions of that section. every aircraft which goes across private land is liable in trespass. “Ordinary incidents of such flight” in section 40 includes photography. “Incidents” means things which happen while the flight is going on. The air is not the same as the highway. There is no question of rights of passage and repassage within the air in the way that one speaks of such rights in relation to the highway. “Incidents” must in its natural ordinary meaning include things that happen incidentally to the flight and the taking of a photograph is these days something which is regarded as properly incidental and ordinarily incidental, as opposed to extraordinarily incidental, to the flight. What section 40 has in mind is the possibility of aircraft buzzing and misbehaving, and making excessive noise or jettisoning property or substances over the land.

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Even if trespass is established the remedy of injunction is wholly inappropriate in that there is no continuing trespass, the defendants promised in their undertaking not to repeat, and there is no 482

danger of their repeating, the flight, and no harm will be done to the plaintiff if an injunction is refused. Gray in reply. The maxim “cujus est solum …” applies to the facts of this case so as to enable the plaintiff to complain of trespass by invasion of his airspace. The argument that the concept of reasonable user of the airspace has been imported into the law of trespass is unsupported by authority and is inconsistent with the strict nature of the law of trespass. Such a concept could also be inconsistent with section 40, in that if defendants were entitled to pray in aid the concept of reasonable user of the skyway, one might have the absurd situation whereby they were protected by that concept, but were not protected by section 40. Whether an action in trespass can be maintained does not depend on the length of time for which the airspace is invaded: see Pickering v. Rudd, 4 Camp. 219 . Aerial trespass can be established where there is no damage or annoyance or prospect of danger: see Wandsworth Board of Works v. United Telephone Co. Ltd. (1884) 13 Q.B.D. 904; Gifford v. Dent [1926] W.N. 336; Woollerton and Wilson Ltd. v. Richard Costain Ltd. [1970] 1 W.L.R. 411. It is unlikely that Parliament would have passed the Civil Aviation Act negativing a right of action in trespass in respect of the passage of aircraft if no such right of action existed at common law: see Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. [1957] 2 Q.B. 334. Since Pickering v. Rudd, 4 Camp. 219 , there has been a gradual development of case law on aerial trespass in which no doubts or reservation are expressed about the rigour of the cujus est … maxim. When the question of aerial photography is referred to in the textbooks the writers are unanimous in saying that it may amount to a trespass: see Shawcross & Beaumont on Air Law, 3rd ed., p. 560 et seq.; Salmond on Torts, 16th ed., p. 44; Halsbury's Laws of England, 4th ed., vol. 2 (1973), p. 685. The only protection from liability in trespass given by section 40 is in relation to ordinary passage across the sky, and it does not protect an aircraft whose entry was solely or mainly in connection with the taking of photographs. “Ordinary incidents” cannot include taking the kind of detailed photograph of a house which was taken in the present case. In section 40 Parliament was saying that provided it is an ordinary flight and the aircraft is not being used for any ulterior purpose, then no action lies. Anything which is reasonably incidental to the ordinary flight on an aircraft is permissible and to that extent no claim in nuisance or trespass will lie. It is for the defendant to show that the taking of the photograph was an ordinary incident of the flight. Flying for the purpose of taking photographs is not an ordinary incident of the flight because people flying in planes do not

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normally take detailed photographs of other peoples' homes. The exemption afforded by section 40 applies only to flight and the ordinary incidents of the flight. For example the section could not be used as a defence to an action for trespass where a pilot indulges in stunting or aerobatics. There is no distinction between aerobatics and aerial photography. Section 40 gives no more than a right of 483

innocent passage: see Shawcross & Beaumont on Air Law, 3rd ed., p. 560 et seq. In section 40 Parliament was taking away from the rights of individual members of the public, and in construing such a section one should be careful not to construe it more widely than the words can reasonably bear. The conception that one owns the sky and the heavens above one's house may seem absurd, but one must give effect to the law: see Gifford v. Dent [1926] W.N. 336. The maxim “cujus est solum …” is not absurd when looked at in the context of the present case where it is wholly reasonable for the plaintiff to say he does not want his seclusion interfered with. The use of a highway by a racing tout who merely walked up and down it for one and a half hours while studying through binoculars the distant movements of racehorses for the purpose of his business was not ordinary and reasonable use of the highway: see Hickman v. Maisey [1900] 1 Q.B. 752. That situation is analagous to the present case. There is no evidence to justify the assertion that taking photographs of the present kind was reasonable user of the sky, or doing no more than was reasonably incidental to the exercise of the right of passage across the sky. With regard to invasion of privacy as a separate cause of action, the plaintiff's right of action in trespass depends on where physically in the sky the aeroplane was at the time the photographs were taken, and that is a strong argument for having some sort of right of privacy, and is the basis of any argument for a claim based purely on privacy wholly independent of trespass. The fact that no damage or only nominal damage was done to the plaintiff should not prevent the court from granting an injunction if trespass is established: see Woollerton and Wilson Ltd. v. Richard Costain Ltd. [1970] 1 W.L.R. 411. Trespass must be distinguished in this respect from nuisance where damage is an essential element.

Cur. adv. vult. February 10. GRIFFITHS J. read the following judgment. On August 3, 1974, the defendants took a single aerial photograph of Lord Bernstein's country house in Kent. It was one of many thousands of such photographs that the defendants have taken over the course of the last 17 years for their business is to take aerial photographs of properties of all types and then to offer them for sale to the https://www.iclr.co.uk/document/1971000333/casereport 39561/html

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owners. They offered to sell Lord Bernstein the photograph that they had taken of his house, but Lord Bernstein took strong exception to their behaviour. He wrote to complain that photographing his house without his permission was a gross invasion of privacy and demanded that they hand over or destroy all negatives and prints of his house. Unfortunately Lord Bernstein's letter was not seen by Mr. Ashby, the managing director of the defendants, who are a small family company. If he had seen it he tells me that he would have immediately undertaken to destroy the negative and promised never to take another photograph of Lord Bernstein's property. The last thing Mr. Ashby wishes is to give offence and he says that apart from one complaint of low flying this is the first time 484

that an owner has complained about his property being photographed. If only Mr. Ashby had seen the letter I have no doubt he would have done as he said and that would have been the end of the matter. But he did not see the letter, and it was in fact answered by a young lady of 18 who had only recently joined the defendants. She wrote thanking Lord Bernstein for his letter and offering to sell him the negative for £15. It was a very polite letter to write to someone wanting to buy a photograph, but it was a most inappropriate letter to write to Lord Bernstein. It naturally gave offence and Lord Bernstein went to his solicitors. They wrote to the defendants on March 12, 1975, complaining of the effrontery to offer to sell the negative and alleging that the defendants had trespassed into Lord Bernstein's air space and thus invaded his privacy. They called upon the defendants to deliver up the negatives and prints, to undertake not to infringe Lord Bernstein's rights again and to apologise. Here was another chance for a soft answer to turn away wrath but this time there was no answer at all. Again Mr. Ashby says neither he nor any of his family saw the letter — perhaps someone in the office saw it as something nasty that would go away if they did nothing. But it did not go away, and having received no answer to the letter Lord Bernstein's solicitors commenced this action by writ dated June 26, 1975. By the statement of claim it is alleged that the defendants wrongfully entered the air space above Lord Bernstein's premises in order to take an aerial photograph of his house and were thus guilty of trespass and an actionable invasion of his right to privacy. The defendants admit that they took the aerial photograph but deny that they entered the air space above the premises to do so; they say that the photograph was taken when the aircraft was flying over adjoining land not owned by Lord Bernstein. Alternatively they say that if they did fly over Lord Bernstein's land to take the photograph they had his implied permission to do so. I will deal first with this second line of defence. [His Lordship referred to an occasion in 1967 when a similar aerial photograph was offered for sale to Lord Bernstein by the defendants. He continued:] It is this incident in 1967 that the defendants rely upon as their licence to fly over the property in 1974 and take another photograph. So far from giving them a licence Lord Bernstein

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had expressed indignation at their behaviour in 1967 and it is in my view quite impossible to suggest that the defendants were given any licence to fly over the land in 1974. This line of defence therefore fails. I turn now to the substantive issue of fact between the parties, namely, whether or not the defendants flew over the plaintiff's land to take the photograph. Lord Bernstein's house is called Coppins Farm and it stands in an estate of approximately 150 acres. The photograph was taken from a Cessna light aircraft using a 35mm Pentax camera fitted with a standard 135mm lens. The pilot himself took the photograph. He was not accompanied by a photographer. There is a fierce dispute as to the position and height of the aircraft when the photograph was taken. [His Lordship referred to the evidence adduced by both sides as to the height from which the photographs were taken and the position of the aeroplane and continued:] It 485

will be sufficient to found the plaintiff's argument if at some time in the process of obta...